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The codification of civil and criminal laws as well as their arcane purposes, enforcement, and procedural language (Latin) of adjudicating disputes, adopted by the governments of the USA and its antecedents (the republics of Europe), owe its existence today to traditions and social structure erected by the bureaucrats of classical Rome. There --not the classical Athenian polis-- is the model of civilization vaguely recalled today that instantiates a "democratic" institution of the western Roman empire believed to oppose the arbitrary authorities of any monarchical/despotic/tyrannical ruler: Let's call that concept of "justice" in toto "public law." And let us consider how radicalize French, generally, and Napoleon, specifically, in his comparatively brief tenure popularized this fictitious innovation throughout the illiterate, feudal carapace of Europe.

"The interests of the State"
rather than an attorney, ideally, is to represent, figuratively and literally, everyone in a courts of law --particularly in finding the facts of criminal conduct. Yet we find time and again instances when the arbiter of "justice" (a judge or magistrate) fails to administer "legal" procedures or interpret facts of law as expected. Whatever that expectation may mean to you or me or the boy-next-door more often than not reveals that our apprehensions do not question either the code per se enacted by elected representatives or the moral turpitude of the persons who elected the legislators.

Who demands capital punishment to remedy the harm afflicting a dead victim?

Permit me ironically to quote, for example, passages from The Class Struggle in the Ancient Greek World by G. E. M. de Ste. Croix, pp328-329

The sphere (the intellectual one) in which Roman genius displayed itself was the ius civile, the 'civil law', a term with a rage of means (depending mainly on the context) which I shall use in a fairly broad sense, to mean the private law regulating relations between Roman citizens [...] I do not meant at all that the Romans had what we call 'the rule of law': in fact that was conspicuously lacking from large areas of the Roman legal system, including particularly what we should call criminal and constitutional law (together making up 'public law'), the very spheres most people today will mainly be thinking of when they use the expression 'the rule of law.'[even the operation in practice of the civil law was deeply affected by the new forms of legal process which were introduced in the early Principate and gradually came to supersede the 'formullary system' that had flourished during the last few generations of the Republic. It is difficult even to give these nese new processes a collective name, but perhaps 'the system of cognitio will serve. Introduced for some purposes as early as the reign of Augustus, and always of course dominant in the provinces, thes procedure had become universal even in Italy and Rome itself by the late third century [C.E.] in civil as well as criminal cases. It was sometimes referred to by the Romans as 'cognitio extraordinaria', even long after it became standard practice. ...In practice it gave the magistrate trying the case a very large measure of discretion, and its general extension justifies such statements as those of Buckland that 'civil procedure was superseded by administrative action''and that there was an 'assimilation to administrative and police action. It is true, as Buckland insisted, that the civil procedure was 'still judicial' and that 'the magistrate must abide by the law' but the magistrate had very wide powers, and as far as criminal procedure is concerned ... that the rule' nullum crimen sine lege, nulla poena sine lege'('no criminal charge except by a law, no punishment except by a law') was always unknown to Roman law. [...] I am devoting more attention here to legal procedure and less to legal principle than might be expected because the Roman lawyer, unlike his modern counterpart in most countries, 'thought in terms of remedies rather than of right, of forms of action rather than of cause of action (Nicholas, IRL 19-20) so that the nature of legal procedure was all-important.

The roman ius civile was above all and elaborate system, worked out in extraordinary detail and often with great intellectual rigour, for regulating the personal and family relationships of Roman citizens, in particular in regard to property rights, a peculiarly sacred subject in the eyes of the Roman governing class

Perhaps high or low esteem (You be the judge) for the sanctity of property could furnish an explanation, why no legislator has thought to exercise the tax authority of the state --rather than its remunerative discretion-- to sanction [!] obscene 'incentives' of judges and lawyers, while replenishing the state's treasury?

Diversity is the key to economic and political evolution.

by Cat on Mon Jul 3rd, 2017 at 04:00:22 PM EST
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